Cole, J.
On the former appeal, in the action on the judgment recovered against the old corporation, it was intimated *657that a court of equity, in a proper case, might require the defendant company to pay that judgment for damages awarded for taking tbe property for the use of its road, or stop running its cars over the land. 37 Wis., 319. It seems reasonable that a court of equity should afford such relief when it appears, as it does in this case, that the new company has elected to adopt and ratify the original taking, and continues to use the land for the purposes of its road. The right of the land owner to compensation for his property is protected by the constitution, and must prevail even as against the purchaser at the foreclosure sale. It appears from the complaint that the old company is wholly insolvent, has really ceased to exist as an organized corporation; that all its franchises and property have passed to and are now held by the defendant as its successor. The judgment against the old corporation is consequently absolutely worthless, and unless the plaintiff can have some relief against the new company, either by a suit in this form or by an action at law, he is entirely remediless. And the fact that the old company has ceased to exist, is a sufficient answer to the objection that it should have been made a party defendant.
The doctrine of Pfeifer v. The Sheboygan & Fond du Lac R. R. Co., 18 Wis., 155" court="Wis." date_filed="1864-01-15" href="https://app.midpage.ai/document/pfeifer-v-sheboygan--fond-du-lac-railroad-6599128?utm_source=webapp" opinion_id="6599128">18 Wis., 155, is relied on as a direct authority to sustain this action, and the reasoning in that decision doubtless supports it. There, damages for the property appropriated by the old company had been assessed; but these not being paid, an action was commenced to enjoin the company from running its cars over the land. This injunction suit was pending at the foreclosure sale, and when the new company was organized. The new corporation, however, was made a party to the injunction suit; appeared in that action, and contested the right of the plaintiff to the relief asked. On the hearing, a perpetual injunction was granted restraining both the old and new company, and each of their officers and agents, from operating the road across the land of the plaintiff until the judg*658ment for damages, witb interest tbereon, together with the costs in the injunction suit, were paid. This injunction the new company disregarded, and continued, to run its cars over the plaintiff’s land. Thereupon, an action at law was commenced against both companies, founded upon the judgment in the injunction suit, and in that action a recovery was had against the new company for the whole amount of the judgment for damages assessed for the land taken, and for the costs in the injunction proceeding. An appeal was taken from the judgment thus recovered, which is the case reported in 18 Wis. This statement is sufficient to explain the difference between the Pfeifer case and this case as presented on the former appeal. It will be seen that the Pfeifer case is somewhat peculiar in its facts, and may be anomalous in the mode adopted to fix the liability of the new cotnpany to make compensation for land taken., But whether it is a correct precedent to be followed in future cases, is a question upon which, at this time, we express no opinion. It is plain the new company in that case might have been attached for violating the injunction. And if it appeared in the contempt proceeding that the misconduct of the company was calculated to, or did actually defeat, impair or prejudice the rights or remedies of the plaintiff in the injunction suit, the court might have ordered it to pay a sum sufficient to indemnify him against all loss. As the same end was really reached by the practice adopted, the new company would not seem to have any very substantial ground of complaint that it was not proceeded against for violating the injunction. The Pfeifer case may be sound in principle; a point we neither affirm nor deny in deciding this cause.
The object of this action, however, is, to carry out the intimation in the former opinion, and to compel the defendant either to pay the judgment for damages, or cease from using or occupying the real estate for the purposes of its road. The question is, Can the plaintiff, upon general principles, have *659that or any kindred relief upon the facts stated in the complaint? It seems to ns clear that he is entitled to some such relief.
It is quite clear that no compensation has ever been made the plaintiff for his property taken for public use. The inquiry is, whether he has lost the right to insist upon payment by the defendant of the damages assessed, or an abandonment of the use of his land. The counsel for the company argues and says: Assuming that the defendant was liable as successor of the old company, particularly because it succeeded to the occupancy and benefits which that company enjoyed under its condemnation of the land, still the plaintiff has so conducted himself that no obligation rests upon the defendant to make compensation. "Why not? The counsel claims that the facts alleged show a waiver on the part of the plaintiff of his right to compensation. ¥e are surely unable to perceive, upon the facts stated, any grounds for saying that the plaintiff has waived or lost his right to payment from the defendant, if it continues to use his land. It is true, it appears that the foreclosure sale took place about two years after final entry of judgment for damages against the old company. But the purchaser at that sale took under the foreclosure only such rights as that proceeding gave him. The old company had then acquired no right to use the land for its road, but was in possession simply as a tresspasser. In the case of Sherman v. The Milwaukee, Lake Shore & Western R. R. Co., just decided (ante, p. 645), it is held that, “if a railroad company take possession of land for which it is liable to make' compensation, without the consent of the owner, and without having ascertained and paid the compensation under the process given by the statute, it is a trespasser, and liable in an action of trespass.” This was the position which the old company occupied when the foreclosure sale took place. Its possession was wrongful, it not having made compensation for the property permanently appropriated for the use of its road. *660Under these circumstances, what ground is there for saying that the plaintiff has waived his claim for compensation, or lost his right to insist upon it as against the defendant? True, he might earlier have taken steps to enforce payment of his damages, or to enjoin the defendant from running its cars over his land; but there is certainly nothing in that act of forbearance which shows any waiver of his legal rights. Iiis right to compensation is paramount, not affected or destroyed by the foreclosure. If he has waited thirteen years for the defendant to do him justice by paying his damages, this should not be deemed a waiver, on his part, of any remedy he may have against it. And on examination we find nothing in the doctrine laid down in McAuley v. West Vermont R. R. Co., 33 Vt., 311" court="Vt." date_filed="1860-11-15" href="https://app.midpage.ai/document/mcaulay-v-western-vermont-railroad-6577045?utm_source=webapp" opinion_id="6577045">33 Vt., 311; Knapp v. McAuley, 39 id., 275; People ex rel. Green v. M. S. R. R. Co., 3 Gibbs, 496, which should modify these views.
But the further question arises, whether the cause of action is not barred by the statute of limitations. Upon that point the counsel for the plaintiff insists that the action falls within sec. 3, ch. 138, R. S., and is not barred. That section provides, in substance, that no cause of action founded upon the title to real property shall be effectual unless it appear that the person prosecuting the action was seized or possessed of the premises in question within twenty years before the committing of the act in respect to which such action is prosecuted. It is said that this is an action for equitable relief founded upon title to real estate, and comes within both the letter and spirit of this provision. It appears to us that the position is sound.
Doubtless an action of ejectment would lie against the defendant to recover the possession of the property. But the plaintiff has not seen fit to resort to that remedy, but seeks by an action in equity to compel the defendant either to abandon the possession and use of his land, or to pay him for it. His right to that equitable relief is founded upon the fact that he is the owner of the land, or upon his title to the property. *661His land liaying been taken for public nse, the defendant company having adopted and ratified the original taking, it would seem plain that the owner should either have his just compensation required by the constitution to be paid, or have relief by way of a permanent injunction. And we are unable to perceive why it is not strictly correct to say that the action is founded upon the title to real property, and falls directly within sec. 3. If this is so, it is quite obvious that the action is not barred. Eor, conceding that the possession of the defendant was adverse, it is clear that the facts do not bring its possession within the limitation of section 6. But the counsel for the defendant insists that the action must be treated as one brought under section 22. By that section it is enacted that “ an action for relief not hereinbefore provided for must be commenced within ten years after the cause of action shall have accrued.” If we are right in the view expressed that the action is one embraced in section 3, it is manifest that section 22 does not apply to it. Eor the latter section only professes to include actions for relief not before provided for in the statute.
These remarks dispose of all questions raised by the demurrer.
It follows that the order sustaining the demurrer to the complaint must be reversed, and the cause remanded for further proceedings according to law.
By the Court. — It is so ordered.